King v. Kayak Mfg. Corp., 18910

• Decision Date: 09 November 1989
• Docket Number: No. 18910,18910
• Citation: 182 W.Va. 276,387 S.E.2d 511
• Parties: , Prod.Liab.Rep. (CCH) P 12,345 Clifford KING v. KAYAK MANUFACTURING CORPORATION.
• Court: West Virginia Supreme Court

Page 511

387 S.E.2d 511

182 W.Va. 276, Prod.Liab.Rep. (CCH) P 12,345

Clifford KING v. KAYAK MANUFACTURING CORPORATION.

No. 18910.

Supreme Court of Appeals of West Virginia.

Nov. 9, 1989.

Syllabus by the Court

1. "Contributory negligence and assumption of risk are not identical. The essence of contributory negligence is carelessness; of assumption of risk, venturousness. Knowledge and appreciation of the danger are necessary elements of assumption of risk. Failure to use due care under the circumstances constitutes the element of contributory negligence." Syllabus Point 5, Spurlin v. Nardo, 145 W.Va. 408, 114 S.E.2d 913 (1960).

2. A plaintiff is not barred from recovery by the doctrine of assumption of risk unless his degree of fault arising therefrom equals or exceeds the combined fault or negligence of the other parties to the accident.

3. The defense of assumption of risk is available against a plaintiff in a product liability case where it is shown that the plaintiff had actual knowledge of the defective or dangerous condition, fully appreciated the risks involved, and continued to use the product. However, the plaintiff is not barred from recovery unless his degree of fault under assumption of risk equals or exceeds the combined fault of the other parties to the accident.

4. To determine whether to make a new rule of law retroactive, courts consider the following factors: (1) whether the issue involves a settled area of the law where retroactivity would be less justified or a changing area where retroactivity would be more likely and whether the new rule is foreshadowed; (2) procedural rules are more likely to be afforded retroactivity than substantive points; (3) common law rule changes are more likely to be applied retroactively; (4) substantial public policy changes are less likely to be applied retroactively; (5) the more radical the departure from prior law, the less likelihood for retroactivity; and (6) analogous decisions of other jurisdictions.

5. The doctrine of comparative assumption of risk should be made fully retroactive. Consequently, comparative assumption of risk is available in all cases tried after the date of this opinion, including those on retrial. Additionally, it applies on appeal if the point was preserved at trial.

6. " 'Where [in a trial by jury] there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested to do so. McAllister v. Weirton Hospital Co., 173 W.Va. 75, 81, 312 S.E.2d 738, 744 (1983) (citations omitted).' Syl. pt. 2, Brammer v. Taylor, 175 W.Va. 728, 338 S.E.2d 207 (1985)." Syllabus Point 2, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987).

7. It is permissible for a physician to testify as to the causal connection between the accident and the manner in which the plaintiff was injured.

8. In a product liability case, the manufacturer's advertising or promotional material concerning the uses of the product are a part of reasonable use of the product and may be admitted into evidence even though the user is not aware of the material.

9. Under Rule 26(b)(4) of the West Virginia Rules of Civil Procedure, there is no absolute right to take a discovery deposition of the other party's testifying expert witness. The rule requires interrogatories to be utilized first and leaves to the discretion of the trial court whether further discovery is warranted.

Richard E. Hamstead, Jacques R. Williams, Hamstead & Williams, Morgantown, for Kayak Mfg. Corp.

Darwin F. Johnson, Morgantown, Peter Perlman, Peter Perlman Law Offices, P.S.C., Lexington, Ky., for appellee.

MILLER, Justice.

In this product liability case, we are asked to determine whether the trial court was correct in directing a verdict in favor of the plaintiff on the issue of liability at the conclusion of all the evidence. The plaintiff became a quadriplegic after he dove into an above-ground swimming pool which contained approximately four feet of water. The defendant's chief defense was that the plaintiff, having used the pool on several occasions shortly before his final dive, was aware of the shallow depth and either assumed the risk or was contributorily negligent.

I.

A.

Besides rejecting these defenses as a matter of law, the trial court appeared to be of the view that following the adoption of the doctrine of comparative contributory negligence, the doctrine of assumption of risk had lost its vitality. ¹ When we adopted our rule for product liability in Morningstar v. Black & Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666 (1979), ² we recognized that assumption of risk was an available defense:

"It does appear that the defense of assumption of risk is available against the plaintiff, where it is shown that with full appreciation of the defective condition he continues to use the product. The hallmark of this defense is actual knowledge on the part of the plaintiff....

"To this defense, some courts have added the further requirement that the plaintiff's conduct in proceeding to use the admittedly defective product must be unreasonable...." 162 W.Va. at 890, 253 S.E.2d at 683-84. (Citations omitted).

See also Star Furniture Co. v. Pulaski Furniture Co., 171 W.Va. 79, 297 S.E.2d 854 (1982).

After our decision in Morningstar, we reviewed the doctrine of contributory negligence in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), and determined that it should be modified, as many other jurisdictions had done, to permit a form of comparative contributory negligence. We outlined our rule in Syllabus Point 3 of Bradley:

"A party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident."

In Bradley, we used the term "comparative negligence" as a shorthand method of referring to comparative contributory negligence. It is clear, however, from Syllabus Point 3 of Bradley that the plaintiff's contributory negligence is compared with the "negligence or fault ... of the other parties involved" and so long as the plaintiff's negligence or fault "does not equal or exceed" that of the other actors, the plaintiff is not barred from recovery because of his contributory negligence. ³

Thus, under Bradley, it is not initially necessary for the jury to make a comparison of each individual defendant's negligence. The first determination is whether the plaintiff's percentage of contributory negligence bars recovery. On this issue, the jury is instructed to determine if the defendants are liable to the plaintiff. Then the percentage, or degree, of the plaintiff's contributory negligence is compared to that of all of the other parties involved in the accident. ⁴

In Adkins v. Whitten, 171 W.Va. 106, 297 S.E.2d 881 (1982), we held that a jury should be instructed on the effect of the comparative negligence doctrine and the fact that if the plaintiff is more than 50 percent negligent, he may not recover damages. This instruction enables the jury to understand the mechanics of the comparative contributory negligence rule. ⁵

The question of the defendant's right to comparative contribution, i.e., allocation of each defendant's separate degree of fault, is a secondary issue. Obviously, it need not be addressed if the jury finds that the plaintiff's contributory negligence bars recovery, as none of the defendants is then liable in damages. Moreover, if one or more of the defendants are found not to be guilty of any primary negligence, such defendant is not liable for any contribution. ⁶ Furthermore, the right of comparative contribution is not automatic, but must be requested by one of the defendants. Thus, the jury should not be asked to consider a defendant's individual degree of negligence until it has first considered the primary issues of the defendants' liability to the plaintiff and the plaintiff's degree of contributory negligence.

We reviewed the principles of comparative contribution in Sitzes v. Anchor Motor Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982), where we acknowledged that such a right existed between joint tortfeasors. We recognized, as have other courts, that it is only equitable that a defendant should have a right of contribution against fellow joint tortfeasors if such defendant is required to pay the plaintiff more than his allocated share of fault. ⁷ We also held in Sitzes that the right of comparative contribution was not automatic, as "it can only be invoked by one of the joint tortfeasors in the litigation ... by requesting ... special interrogatories pursuant to Rule 49(b) of the West Virginia Rules of Civil Procedure[.]" 169 W.Va. at 713, 289 S.E.2d at 688. The right of joint tortfeasors to obtain comparative contribution inter se does not alter the plaintiff's right to joint and several liability on a judgment that is obtained against joint tortfeasors. This right was reaffirmed in Sitzes. ⁸

B.

We have not had an opportunity since Bradley to determine whether, in light of our adoption of comparative contributory negligence, the doctrine of assumption of risk should be modified. In Pack v. Van Meter, 177 W.Va. 485, 354 S.E.2d 581 (1986), we limited the availability of the defense of assumption of risk where the defendant had breached a duty imposed by a statutory safety scheme. In the course of discussing the assumption of risk doctrine, we stated in note 11 of Pack, 177 W.Va. at 491, 354 S.E.2d at 587:

"The parties do not raise and, therefore, we do not address the question of whether in view of our comparative negligence law established in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), there is a need to retain the doctrine of assumption of risk. There is a split of authority on this issue elsewhere. Annot., 16 A.L.R.4th 700 (1982)."

See also Ventura v. Winegardner, ...